Last week, the U.S. Supreme Court heard arguments on Town of Castle Rock, Colorado v. Gonzales [.pdf]. At issue is whether Jessica Gonzales can sue her local police department in federal court for violating her Constitutional rights when they did not enforce a restraining order.

The decision, expected in June, could revolutionize the way police departments across America handle such orders. Hopefully, it will spark discussion of how they are issued as well.

The bare, brutal facts of the Gonzales case are not in dispute.

As part of a divorce proceeding, Jessica Gonzales obtained a restraining order against her husband Simon, which limited his access to the family home and to their children. On June 22, 1999, Simon abducted their three daughters from the home. Early the next morning, Simon committed "suicide by cop"; he was killed in a gunfight after he fired shots through a police station window. Police found the murdered bodies of Leslie, 7, Katheryn, 9 and Rebecca, 10, in Simon's pickup truck.

The interpretation of the surrounding facts is in dispute.

After the abduction, Gonzales repeatedly phoned the Castle Rock, Colo. police for assistance. Two officers — one-half of the small town's then on-duty force — visited her home. They concluded that Simon showed no violent tendencies and that he was in compliance with the restraining order. Even after Gonzales ascertained the location of her husband and daughters, the police insisted they could do nothing. By Colorado state law, however, the police are required to "use every reasonable means to enforce a protection order."

At issue before the Supreme Court is whether the police department violated Gonzales' (and her daughters') 14th amendment right to due process when it declined to enforce the protection order. Section 1 of the Amendment asserts, "No State shall...deprive any person of life, liberty or property, without due process of law..." Thus, Gonzales' suit for $30 million in compensatory damages (as well as punitive damages and attorneys fees) holds her local police department liable under federal civil rights law.

Supported by women's groups such as the National Association of Women Lawyers, the Gonzales suit is path-breaking in at least two ways: first, it would establish restraining orders as de facto Constitutional entitlements, the enforcement of which are guaranteed by procedural due process; and, second, it would hold state police federally liable for actions they did not take rather than for their bad acts.

Opponents reject this argument as having been settled by the Supreme Court's 1989 decision on DeShaney v. Winnebago Cty. Dept. of Soc. Servs. The decision held local officials not liable under the Constitution for failure to protect individuals from violence by other private individuals.

The Gonzales case involves complex political issues. For example, should government agents be immune from lawsuits to which private individuals are vulnerable? Why does accepting a tax-funded salary provide exemption from bad acts?

A March 20 report on 60 Minutes has stirred commentary on those and other questions. (It has also brought accusations that the broadcast, which became an expose on the police, was biased and selective with facts.)

But one question remains curiously under-discussed. Namely, what does the police reaction say about current policies on issuing restraining orders?

I think it says restraining orders are granted too easily. A restraining order is a legal constraint on another person's body, which limits his or her freedom; it should be imposed only in the presence of a real threat from that person.

But, today, restraining orders are almost a routine part of contentious divorces, which lawyers often use to advantage in negotiating settlements. As a purely practical matter, it may be impossible for police to enforce the resulting flood of restraining orders. Thus, those who oppose Gonzales' arguments — e.g. the Bush administration and various police organizations — do so partly on utilitarian grounds.

Moreover, the ease with which "standard" restraining orders are obtained and the role they play in "divorce maneuvering" makes the police view them with less urgency.

In Castle Rock's petition to the Supreme Court, the Gonzales order is described as "a perfunctory, standard-form partial restraining order" through which Simon Gonzales was "to avoid contact with Ms. Gonzales and her children other than during parenting time to which he was entitled every other weekend, for two weeks during the summer, and during a pre-arranged mid-week dinner visit." (p.6)

Rather than indicate potential violence, the order must have read like routine paperwork. Apparently, this is how the police read it...with terrible consequences for everyone, including women (and men) who require protection from real threats of violence.

In a Washington Post column, law professor Joan Meier opens with a sharp but just comment: "It is common for the public and the courts to criticize women who are victims of domestic abuse for staying in an abusive relationship and tolerating it."

She points to Gonzales as an example of what happens when women stand up for themselves.

Meier makes an excellent point but she also misses one. As long as restraining orders are "standard" and "perfunctory" they lose all value as indications of possible violence. Perhaps the police would take them seriously if they were issued only after a genuine threat of violence had been established. Otherwise, it becomes impossible to distinguish a necessary restraining order from one obtained for advantage.